Professional Documents
Culture Documents
2d 99
Jesus Hernandez Sanchez, San Juan, P. R., on brief for plaintiff, appellant.
Hector A. Colon Cruz, Sol. Gen., and Reina Colon De Rodriguez, Asst.
Sol. Gen., San Juan, P. R., were on brief, for defendants, appellees.
Before COFFIN, Chief Judge, CAMPBELL and BOWNES, Circuit
Judges.
COFFIN, Chief Judge.
At issue is whether the district court erred in finding that neither the federal
doctrine of fraudulent concealment nor the rule governing relation back of
amended pleadings, Fed.R.Civ.P. 15(c), saves appellant's claims against
appellees from being time-barred.
Believing that he had been discharged for political reasons, appellant sued his
supervisor and the members of the reviewing commission which upheld the
supervisor's decision for violating his civil rights under 42 U.S.C. 1983 and
1985. Appellees, two local politicians, were subsequently added as defendants
by an amendment to the complaint alleging that they too had participated in the
conspiracy to deprive appellant of his position as a lieutenant in the Puerto Rico
police. The relief sought is reinstatement, back pay, compensatory and punitive
damages.
After some documentary evidence had been submitted but before trial, the
district court dismissed the action. The court ruled that the claims against the
original defendants were barred by res judicata, an appeal from the discharge
having been dismissed by the Superior Court as untimely, while those against
the new defendants were time-barred because the amended complaint had not
been filed until after the applicable limitations period had expired. We reviewed
these rulings in an earlier appeal where we found that, as to the claims against
the original defendants, res judicata was inapplicable but the statute of
limitations barred those which arose from appellant's dismissal. The remaining
original claims, those stemming from the commission's affirmance of the
discharge, were timely, however, and we ruled that the action should proceed
as to them. As to the claims against the new defendants, we stated that "it is
open to plaintiff to prove if he can (on remand) that these parties fraudulently
concealed from plaintiff their participation in the alleged conspiracy to affirm
his dismissal" or that "the amended complaint 'relates back' to the original
complaint (pursuant to Rule 15(c), Fed.R.Civ.P.) so as to place the added
defendants in the same position as the others for statute of limitations
purposes." Hernandez Jimenez v. Calero Toledo, 576 F.2d 402, 404-05 & n. 3
(1st Cir. 1978) (see this opinion for a more detailed accounting of the facts than
is presented here).
4
On remand, with regard to the claims against the new defendants, the district
court instructed the parties to file memoranda, "together with any competent
proof, in connection with the question of the date when the statute of
limitations began to run as to (appellees)." Appellant complied by submitting,
along with a memorandum, two affidavits, one from himself and the other from
a friend and member of the police, Alejandro Gonzalez Gonzalez. Appellees
submitted three affidavits, not from themselves but from the members of the
reviewing commission, along with their memorandum. On the issue of
fraudulent concealment, appellant argued below that the applicable limitations
period was one year and that, since he had filed his amended complaint within
one year of discovering appellees' participation in the conspiracy to affirm his
dismissal, his claims against the appellees were timely. On the relation back
issue, appellant's argument below is unclear.
On the fraudulent concealment issue the district court first noted, correctly, that
the relevant statute of limitations was the one year period pursuant to 31
L.P.R.A. 5298, Rameriz de Arellano v. Alvarez de Choudens, 575 F.2d 315
(1st Cir. 1978), and that in a continuing conspiracy to violate civil rights, the
statute ordinarily runs from the occurrence of each action, Hernandez Jimenez
v. Calero Toledo, supra, 576 F.2d at 404, Citing Kadar Corp. v. Milbury, 549
F.2d 230, 234 (1st Cir. 1977). The court went on to hold that appellant failed to
establish a case under the federal doctrine of fraudulent concealment because
Appellant gives the following three reasons in support of his contention that the
district court erred in finding the doctrine of fraudulent concealment
inapplicable to appellant's claims against appellees. There is no doubt,
according to appellant, that appellees concealed their participation in the
conspiracy from him, that appellees knew all along about the commission's
affirmance thereof, and that appellant was ignorant of his causes of action
against appellees until less than one year from when he filed his amended
complaint.
On these facts we can find no suggestion that any efforts were made to hide the
conspiracy. Indeed, the circumstances surrounding Amaes' overheard
statements suggest the opposite of concealment. Nor were there any alleged
misrepresentations which could throw appellant off the trail of any inquiry.
We have difficulty also in finding any evidence in the record that appellant
exercised due diligence. Although told by his former supervisor that he was
subject to political pressures, appellant apparently did nothing for months, until
Gonzalez told him about the overheard conversation. Moreover, there are no
factual allegations which could lead one to conclude that investigative efforts
would be futile. While the district court did not rely on this ground, we hold
that the complete absence of factual allegations indicating either the exercise of
due diligence or the futility of such efforts constitutes a separate and
independent ground supporting the judgment below.2
10
11
12
Appellant having failed to demonstrate that the district court erred in its rulings
on the fraudulent concealment and Rule 15(c) issues, the judgment of the
district court is
13
Affirmed.
The district court did err, however, in inferring from language in our prior
opinion, Hernandez Jimenez, 576 F.2d at 404, that we had, during the course of
that appeal, reviewed appellant's affidavits and found them wanting to establish
fraudulent concealment and the applicability of Rule 15(c). We made no
mention of any such review in that opinion nor is it correct to assume that,
merely because the affidavits were in the record then before us, we reviewed
them for that purpose. If we had intended our prior opinion to include a ruling
on the sufficiency of these affidavits for fraudulent concealment and Rule 15(c)
purposes, we would have expressly so stated
The court's error in misreading our prior opinion is harmless, however, because
the court made its own independent assessment of appellant's affidavits, based
its rulings on these assessments, and, as is indicated by this opinion, appellant
has failed to show that these rulings are unsound.